Who decides on the How and Why of a funeral?: an Australian argument

In a guest post, Neil Addison, Barrister, looks at a family conflict over funeral rites.

In the rather sad case of Gus Kak v Allison Sarah Kak (née Boman) [2020] NSWSC 140 (26 February 2020) the Supreme Court of New South Wales had to adjudicate a dispute between a Roman Catholic widow and her Muslim brother-in-law as to who had the right to decide on the form of funeral for the deceased, Omar Kak.

Omar Kak had been born and brought up as a Muslim whilst Sarah Kak (née Boman) had been born and brought up as a Catholic. They had been together for some 20 years but, as the judge concisely noted, “There was tension between their respective families. There still is.” According to Alison and at Omar’s request, their children had never met his family.

There was evidence of a complicated religious relationship in that in 2006, Allison took on the Muslim faith after reciting the acclamation known as the Shahada, following which she and Omar married in a Muslim ceremony; however, in 2008 they married again in a Catholic ceremony.

According to evidence from their local Catholic priest, Omar was a regular attender at the church with Allison and their children. One of their children was baptised in 2014. Omar had apparently expressed to Father Bates a desire to be baptised into the Catholic Church but this did not happen before he died. It is worth noting that, according to the beliefs of some, (and I do stress ‘some’) Muslims, if Omar had allowed himself to be baptised then he would be liable to be killed as an apostate to Islam. There appeared to be no evidence before the Court that Omar attended any mosque either regularly or irregularly.

Before Omar died he made a will appointing Alison as his executor. The will did not apparently include any specific requests or directions for the form of funeral he would prefer. Immediately after Omar’s death, his brother Gus Kak applied to the Supreme Court for an order that he be granted a special grant of administration limited to the custody of Omar’s body and authorisation to arrange Omar’s burial or, in the alternative, that the Coroner be at liberty to release Omar’s remains into his custody to enable him to carry out the funeral arrangements and dispose of the remains.

Rather sadly, the evidence from Gus was that if Omar was not buried in accordance with the Islamic faith, he and the family would not visit the grave for the purpose of remembering and praying for him because it was against the Islamic faith to pray for a person who had died as a Christian. Allison said that Omar always told her that his burial wishes were that his funeral be held at the church where they were married and that he be buried at Woronora Cemetery, where she had reserved a plot.

The judge avoided being dragged too far into any argument as to whether Omar was a Catholic or a Muslim. As he said:

“Much of the evidence is directed to whether Omar kept his Muslim faith or accepted Catholicism. The fact is, he did both. He maintained a connection with Islam but also embraced Catholicism. I am not in a position, nor would I consider it appropriate even if I was in a position, to assess the relative strengths of his faith or loyalty to the respective faiths.”

The judge, instead, zeroed in on the legally-incontestable fact that Omar had appointed Allison to be his sole executrix and in law, the named executor or executrix of a deceased has the right to arrange for the disposition of the deceased’s body. There was no reason, in this case, to depart from that normal practice and so Omar’s application was refused and he was ordered to pay Alison’s legal costs.

Its perhaps worth noting that at one point counsel for Gus (probably seeing that he was losing the case) proposed that a practical compromise would be for a Catholic burial to be given to Omar, but that the Kak family be given access to Omar’s remains to permit the carrying out of Islamic pre-burial rituals and for Omar to be buried facing Mecca in accordance with Muslim tradition. The judge doubted that he had the power to make any such direction – and it must be said it looks like the sort of messy compromise that would have ended up satisfying nobody

The basis of the decision in this case, namely to rely on the executor and not get drawn into the complicated facts, would probably be followed in any similar case in Britain. There might, and I stress ‘might’, have been a different decision if the deceased had left any indication as to what religious type of funeral he wanted and the executor was wilfully ignoring those wishes but, as we lawyers say, “It all turns on the facts” – and in this case, the facts seemed to be clear that Omar was happy with a Catholic funeral even if his brother wasn’t.

Neil Addison

 

3 thoughts on “Who decides on the How and Why of a funeral?: an Australian argument

  1. The decision of the Supreme Court of New Zealand in Takamore v Clarke [2012] NZSC116 may also be of interest. That decision can be readily accessed via the http://www.nz.lii.org site. There the court had to determine whether the rights of the executor should prevail over Maori tikanga or custom.

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